Washington DC Injury Lawyer Blog

Trampoline Park’s Contract Mandating Arbitration Found to Be Unenforceable

November 2, 2016 | Lebowitz & Mzhen

Earlier this month, one state’s supreme court issued a written opinion summarily affirming a lower court’s decision that the contract the defendant trampoline park required patrons to sign was a contract of adhesion and thus unenforceable. As a result of the court’s decision, the plaintiffs will be permitted to continue with their case in a court of law, rather than proceed through arbitration.

Alicea v. Activelaf: The Facts

The Aliceas arranged to take their two young sons to a trampoline park owned by the defendant. Prior to being admitted into the park, Mrs. Alicea was required to electronically sign a “Participant Agreement, Release and Assumption of Risk” form. The form contained what claimed to be a binding arbitration clause, whereby anyone who signed the form would be prohibited from filing a case in a court of law against the trampoline park. Instead, the dispute would be resolved through an arbitration company. The form also included a clause stating that any person who did file a lawsuit against the trampoline park agreed to pay the park a $5,000 fee plus interest.

On-the-Job Injuries May Result in Personal Injury Claims

October 25, 2016 | Lebowitz & Mzhen

Generally speaking, whenever a worker is injured on the job, he is entitled to benefits though the Workers’ Compensation program. While Workers’ Compensation offers injured employees benefits roughly equivalent to what they were making while they were able to work, there is no possibility to seek damages above and beyond this amount.

In addition, in many cases, an injured worker’s sole remedy is through Workers’ Compensation, meaning that an injured worker cannot both obtain benefits through Workers’ Compensation and also file a personal injury lawsuit against his employer. However, in some cases, an injured worker will not be prohibited from filing a personal injury lawsuit against his employer or an allegedly negligent third party. A recent case in front of a federal court of appeals illustrates this concept.

Schaefer v. Universal Scaffolding: A Third Party’s Actions Result in a Plaintiff’s Workplace Injury

Schaefer was an employee of Brand Energy, a construction company. One day, Schaefer was injured when a piece of scaffolding came loose, striking him on the head. Schaefer filed a claim for Workers’ Compensation as well as a product liability lawsuit against the manufacturer of the scaffolding, alleging that the scaffolding was defective.

Executive of Peanut Company Sentenced to Prison for Knowingly Distributing Tainted Product

October 18, 2016 | Lebowitz & Mzhen

A former executive of a peanut company was recently sentenced to 28 years in prison for his role in distributing tainted peanut butter back in 2008 and 2009 that made dozens of people seriously ill and killed several others. According to one industry news source reporting on the criminal case, this marked the first time that an executive was prosecuted criminally in a food poisoning case.

Evidently, the prosecution submitted evidence that the executive signed off on shipments of peanut butter that he knew to be tainted. He also submitted fraudulent lab tests, claiming that the product had been tested for salmonella. When investigators conducted an inspection of the facility, they discovered leaking roofs, cockroaches, and evidence of a rodent infestation.

Establishing Civil Liability After a Criminal Prosecution

While the case discussed above was a criminal prosecution, it may have laid the groundwork for the families who were affected by the tainted peanut butter to seek financial compensation through a civil lawsuit. Manufacturers of all products, including food, assume a duty to ensure that the products they sell are reasonably safe. When a product causes an injury to a customer, or tainted food is consumed and results in an illness, the manufacturer may be held liable.

Appellate Court Finds Sufficient Evidence to Uphold Plaintiffs’ Verdict in Medical Malpractice Case

October 12, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Idaho issued a written opinion affirming a jury’s verdict in favor of the plaintiffs, finding that there was sufficient evidence to support the verdict. In the case, Hoffer v. Shappard, the court affirmed the jury’s determination that the defendant doctor was liable for the injuries sustained by the plaintiffs’ daughter after she was misdiagnosed by the defendant doctor.

The Facts of the Case

The plaintiffs’ daughter was born five weeks before she was due. For the first six weeks after her birth, various doctors treated the girl and did not notice anything wrong with her. However, her mother took her to one of the defendant doctors when the girl was two months old for a regular check-up. That doctor saw the girl for five visits in total.

During the visits, the plaintiffs expressed concern that their daughter had an asymmetrical skin fold, had one leg that was significantly longer than the other, and walked on her “tippy toes.” The defendant doctor dismissed the plaintiffs’ concerns, telling them that it was normal for a child under two years old.

Application of the “Discovery Rule” in Medical Malpractice Cases May Require a Judge or Jury to Determine Exactly When the Statute of Limitations Began to Run

October 4, 2016 | Lebowitz & Mzhen

Earlier last month, one state’s supreme court issued a written opinion in a medical malpractice case that was dismissed by the lower court because that court determined it had been filed after the applicable statute of limitations. The court also held that the “discovery rule” did not apply in wrongful death cases caused by medical malpractice. However, the court hearing the appeal in the case of Moon v. Rhode held that the the discovery rule does apply and that the lower court failed to make a factual finding as to when the statute of limitations began to run. Therefore, it was an error to dismiss the case.

The Facts of the Case

The plaintiffs were the surviving family members of a 90-year-old woman who died while under the care of the defendant doctors. After the woman’s death on May 29, 2009, the plaintiffs submitted a request for medical records, had them reviewed by an expert, and was told that there was more that the doctors could have done to treat their mother. During the course of the plaintiffs’ investigation, an MRI was conducted, after which it became apparent that there may have been another doctor who was also partially responsible for their mother’s death. However, this discovery was made after the two-year statute of limitations had expired. The plaintiffs filed the lawsuit nonetheless.

The defendants argued that the two-year statute of limitations should start from the date of the plaintiffs’ mother’s death. They argued that there was enough evidence present at that time to put the plaintiffs on notice that there could be a potential medical malpractice or wrongful death lawsuit. The plaintiffs, on the other hand, claimed that the only way they could possibly know about the facts giving rise to the case was after reviewing the MRI. The plaintiffs argued that since they could not have discovered the potential lawsuit until their review of the MRI, the statute of limitations should not have started until they were made aware of the MRI results.

The Issue of Jurisdiction in Washington, D.C. Personal Injury Cases

September 27, 2016 | Lebowitz & Mzhen

After someone is injured in any kind of accident, they may seek financial compensation from the at-fault party through a personal injury lawsuit. However, before a party’s case is heard by a court, several facts must first be established. One very important fact that must be determined before a case is heard is whether the court where the case is filed has “jurisdiction” over the defendant and the case.

Jurisdiction is a legal term that refers to a court’s ability to issue a binding order on a party. If a court does not have jurisdiction over the parties, it will not be able to legally hear the case, and any ruling or verdict in the case will be invalid. Therefore, before a case proceeds to trial, jurisdiction must first be established.

Jurisdiction is actually a complex legal subject that is often argued and contains many nuances. There are two types of jurisdiction, each of which must be established. They are personal jurisdiction and subject matter jurisdiction. Personal jurisdiction refers to a court’s power to implement an order binding the parties. Subject matter jurisdiction refers to a court’s power to hear the specific topic of the case being filed.

Continuing Course of Treatment Doctrine May Extend Statute of Limitations in Some Maryland and Washington, D.C. Medical Malpractice Cases

September 20, 2016 | Lebowitz & Mzhen

All medical malpractice lawsuits must be brought within a certain amount of time. This is generally known as the statute of limitations. In most cases, if a plaintiff files a case after the statute of limitations expires, the court must dismiss the case. However, there are certain exceptions to this rule that may allow a plaintiff to file a medical malpractice lawsuit after the applicable statute of limitations has technically run out.

The Continuing Course of Treatment Doctrine

In both Maryland and Washington, D.C., plaintiffs who allege medical malpractice against a doctor must bring that lawsuit within a certain number of years from the date of the injury or the date that they discovered the injury. However, if the same doctor continues to provide treatment for the same condition, the statute of limitations may not begin to run until that treatment stops. A recent example of the continuing course of treatment doctrine arose in the case of Parr v. Rosenthal.

The Facts of the Case

The plaintiffs’ son was born with a large bump on the back side of his calf. It took a few years to diagnose, but it was eventually determined in 2003 that the bump was a desmoid tumor, which is a rare but benign tumor that can grow to such a size that it may impair bodily function. In fact, the tumor did begin to alter the boy’s gait, and the parents discussed the removal of the tumor with the team of doctors treating their son.

State Appellate Court Permits Expert Testimony by Foreign Doctor in Medical Malpractice Case

September 13, 2016 | Lebowitz & Mzhen

The California Court of Appeals recently published an opinion reversing a lower court ruling favoring the defendant in a medical malpractice lawsuit. The trial court had granted summary judgment to the defendant and disposed of the plaintiff’s claim by ruling that the plaintiff’s proposed medical expert, who was a licensed physician in Mexico but not the United States, could not offer testimony in support of crucial elements of the plaintiff’s case. Since the appellate court has reversed the lower ruling, the plaintiff’s lawsuit will proceed toward a trial or settlement of her claim.

The Plaintiff Suffers Worsening Symptoms After Having a Surgery Performed by the Defendant

The plaintiff in the case of Borrayo v. Avery is a woman who sought treatment from the defendant in 2009 for chronic pain in her right shoulder and arm. She was diagnosed with thoracic outlet syndrome, which was said to be the result of repetitive stress on her joints from her history of working in clothing production. In September 2009, the defendant performed a surgery on the plaintiff, removing one of her ribs to alleviate her symptoms and treat the diagnosed condition. According to facts discussed in the appellate opinion, the plaintiff’s symptoms failed to improve, and she developed new medical problems approximately one year after the procedure. Based on her worsening condition, the plaintiff filed a medical malpractice lawsuit against the defendant in November 2012.

Court Determines Homeowner’s Insurance Policy Covered Dog-Walking Injury

September 6, 2016 | Lebowitz & Mzhen

Earlier this month, a federal appellate court issued a written opinion in a case between a man injured while walking his friend’s dog and the dog owner’s insurance company. In the case, American Family Mutual Insurance v. Williams, the court determined that the injured party was not excluded from the homeowner’s insurance policy, so the insurance company was responsible to defend against the lawsuit.

The Facts of the Case

Williams was visiting his college friend, Van de Venter. When Van de Venter was getting ready to leave for work, he explained that his dog, Emma, would ring a bell by the door when she needed to go outside. He did not mention anything about walking Emma, only about letting her out.

At some point during the day, Emma rang the bell. Williams came downstairs and attached her leash to take her for a walk. As Williams was walking Emma, another dog in the neighborhood barked, attracting Emma’s attention. As Emma ran toward the other dog, she jerked the leash and Williams fell, sustaining a serious injury to his shoulder.

Court Holds that Medical Battery Claim Constitutes a Medical Malpractice Claim and Must Meet Heightened Requirements

August 23, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Nevada issued an opinion in what turned out to be a medical malpractice case, although the plaintiff filed the case as a battery case. In the case, Humboldt General Hospital v. Sixth Judicial District Court, the appellate court hearing the case determined that the lower court should have dismissed the plaintiff’s case because she failed to comply with the requirements of a medical malpractice case.

The Facts of the Case

Ms. Barrett had an intrauterine device (IUD) implanted in her body at the defendant hospital. About one year after the procedure, the hospital sent a letter to Barrett, explaining that the IUD implanted in her body had not been FDA-approved. As it turns out, the IUD was made in the same facility as the FDA-approved devices. However, since it was shipped to Canada prior to its arrival in the U.S., rather than directly to the U.S., the exact device was not approved.

Barrett filed a negligence claim against the hospital, claiming that it had a duty to only use FDA-approved devices. Barrett also filed a battery claim against the hospital, claiming that the hospital should have known that she would not consent to a non-approved device being implanted in her body. She did not file any expert affidavit or any other supporting documentation because she saw this not as a medical malpractice case but as a battery case.